New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

JOHNIE N. GIBSON v. DOUGLAS TRANT, ET AL.
WITH CONCURING OPINION
Court:TSC
Attorneys:
Gerald C. Russell, Nashville, Tennessee, for the appellant, Johnie N.
Gibson.
Jeffrey A. Woods, Knoxville, Tennessee, for the appellees, Douglas
Trant and Jerry Cunningham.
Judge: DROWOTA
First Paragraph:
This case presents the question whether a criminal defendant must
obtain post-conviction relief in order to maintain a legal malpractice
action against his defense lawyer (what is often referred to as a
"criminal malpractice" action). The trial court held that he must.
Since the plaintiff in the malpractice case here was denied
post-conviction relief, the court dismissed his claim against his
former defense lawyers. The Court of Appeals affirmed. We now
affirm. Along with the large majority of courts to address this
issue, we adopt the rule that a plaintiff in a criminal malpractice
action must show he has been exonerated. To meet this requirement,
the plaintiff must obtain post- conviction relief. Because the
plaintiff did not obtain such relief, the courts below correctly ruled
that the defendants are entitled to summary judgment.
http://www.tba.org/tba_files/TSC/gibsonj_opn.wpd
CONCURING OPINION
http://www.tba.org/tba_files/TSC/gibsonj_con.wpdNPS ENERGY SERVICES, INC. v. ROBERT JERNIGAN
Court:TSC - Workers Comp Panel
Attorneys:
Jade A. Rogers, Gallatin, Tennessee, for the appellant, NPS Energy
Systems, Inc.
David Day, Cookeville, Tennessee, for the appellee, Robert Jernigan.
Judge: CATALANO
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law. The plaintiff, NPS Energy Services, Inc. appeals the judgment of
the trial court finding that the defendant, Mr. Robert Jernigan
sustained an injury within the course and scope of his employment when
he slipped and fell while at work aggravating a pre-existing hip
condition resulting in hip replacement surgery. The trial court found
Mr. Jernigan entitled to a vocational disability of 45% to the body as
a whole representing three times the 15% anatomical impairment rating
given by both physicians in this matter. For the reasons discussed in
this opinion we find that the judgment of the trial court should be
reversed and the cause dismissed.
http://www.tba.org/tba_files/TSC_WCP/npsenergy.wpdTONYA PETRECE RAY v. WILLIAM MARTIN RAY
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee (on appeal), for the appellant,
Stephen Eric Staggs.
John M. L. Brown, Nashville, Tennessee, for the appellee, William M.
Ray.
Judge: KOCH
First Paragraph:
This appeal involves a dispute over the custody of three-year-old
twins between their biological father and the former husband of their
biological mother. The biological father intervened in the divorce
proceeding between the twins' mother and her husband in the Circuit
Court for Davidson County seeking custody of the children. Following
a bench trial, the trial court declared the parties divorced and
awarded custody of the parties' two biological children to the
mother's former husband. The trial court also concluded that the
mother's former husband was comparatively more fit than the twins'
biological father to have custody of the twins. In response to the
biological father's Tenn. R. Civ. P. 59.04 motion suggesting that it
had applied the wrong legal standard when it determined the custody of
the twins, the trial court found that placing the twins with their
biological father would expose them to a "substantial risk and danger
of great harm." On this appeal, the twins' biological father takes
issue with the evidentiary foundation of the trial court's refusal to
grant him custody of his children. We have determined that the record
does not contain clear and convincing evidence to support the trial
court's conclusion that placing these children in their biological
father's custody will expose them to substantial harm. Accordingly,
we vacate the portion of the decree awarding custody of the twins to
their biological mother's former husband.
http://www.tba.org/tba_files/TCA/raytp.wpd
TIMOTHY DALE RIEDER v. PATRICIA ANN CAWLEY RIEDER
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee, for the appellant Patricia Ann
Crawley Rieder.
Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Timothy
Dale Rieder.
Judge: CANTRELL
First Paragraph:
The mother of a seven-year-old daughter asserts that the court awarded
custody of the child to the father because the mother is homosexual.
We find, however, that the court did not base its award on sexual
orientation and that the evidence in the record supports the award of
custody to the father. Therefore, we affirm.
http://www.tba.org/tba_files/TCA/riedertd.wpd
CHUCK ROBERTSON v. MELVIN G. GEORGE, et al.
Court:TCA
Attorneys:
Ronald B. Buchanan, Hendersonville, Tennessee, for the appellant,
Chuck Robertson.
Larry D. Ashworth and Peter D. Heil, Nashville, Tennessee, for the
appellees, Melvin G. George and Jeffrey George.
Judge: CAIN
First Paragraph:
This lawsuit arises out of a real estate contract. The plaintiff,
Chuck Robertson, a residential home builder, contracted to purchase
sixteen (16) lots from the defendant, Melvin George. After the
parties entered into the contract, the plaintiff discovered that the
official flood plain designation had been adjusted to include nine (9)
of the lots the plaintiff contracted to purchase and filed suit on the
theories of intentional misrepresentation, negligent
misrepresentation, mutual mistake, unjust enrichment, and violation of
the Tennessee Consumer Protection Act. The defendants filed a
counter-complaint for breach of contract. The parties filed
cross-motions for summary judgment. The trial court dismissed the
plaintiff's action holding that the mistake was a mistake of law. We
affirm in part, reverse in part, and remand.
http://www.tba.org/tba_files/TCA/robertsonchuck.wpd
THERESA ANN SAPP STAPLES v. RICHARD CHARLES STAPLES
Court:TCA
Attorneys:
Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the
appellant, Richard Charles Staples.
Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee,
Theresa Ann Sapp Staples.
Judge: INMAN
First Paragraph:
This is a post-judgment domestic relations case. The principal
alleged issue is whether a non- custodial parent may be judicially
coerced to exercise visitation privileges. The appealed Order is not
imperative and the asserted issue is not a genuine one. Because the
judgment is marginally ambiguous we modify it to incorporate a measure
of fairness.
http://www.tba.org/tba_files/TCA/staplestheresa.wpd
DON STONE v. DONALD W. BRICKEY, et al.
Court:TCA
Attorneys:
James C. Hofstetter, Nashville, Tennessee, for the appellants, Donald
W. Brickey and Frances E. Brickey.
C. Tracey Parks, Gallatin, Tennessee, for the appellee, Don Stone.
Judge: CANTRELL
First Paragraph:
The trial court found that the plaintiff had a prescriptive easement
over an old county road that abutted his land. The defendants argue
that the trial court was in error because the plaintiff did not prove
all of the elements required to establish a prescriptive easement. We
affirm the trial court.
http://www.tba.org/tba_files/TCA/stoned.wpd
BRENDA JANE (THOMPSON) TURNBO v. JOE LARRY TURNBO
Court:TCA
Attorneys:
William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Joe
Larry Turnbo.
James Y. Ross, Sr., Waynesboro, Tennessee, for the appellee, Brenda
Jane (Thompson) Turnbo.
Judge: INMAN
First Paragraph:
A divorce judgment rendered June 5, 1992 required the appellant to
pay, inter alia, the sum of $185,000 to his wife "as a fair and
equitable division of the marital property." The appellant elected
recalcitrance rather than compliance, and failed to pay. He was found
in civil contempt in September 2000 and ordered to be confined until
he purged himself of contempt. We affirm.
http://www.tba.org/tba_files/TCA/turnbobj.wpd
AHMAD VAKILI, et al. v. RANDY HAWKERSMITH, et al.
Court:TCA
Attorneys:
James S. Stephens, Tracy City, Tennessee, for the appellants, Ahmad
Vakili and Lisa Vakili.
Richard W. Gabriel and John R. LaBar, Tullahoma, Tennessee, for the
appellee, Randy Hawkersmith, Individually and Hawkersmith
Construction, Inc.
Judge: CAIN
First Paragraph:
This case arises from a home construction contract entered into by
Appellants and Appellee. Appellants filed a complaint against
Appellee in the Chancery Court for Coffee County for breach of
contract. Appellee filed an answer and counter-complaint. The trial
court found that the contract was a cost-plus contract with no cap or
ceiling on the price, and rendered judgment in favor of Appellee for
$26,945.10. Appellants appeal. We affirm the trial court.
http://www.tba.org/tba_files/TCA/vakiliahmad.wpdSTATE OF TENNESSEE v. JOE W. COONROD
Court:TCCA
Attorneys:
A. Burton English and Robert L. Marlow, Shelbyville, Tennessee, for
the appellant, Joe W. Coonrod.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
A Bedford County jury convicted the defendant of Class D felony theft
over $1,000, and the trial court sentenced him to 12 years
incarceration as a career offender. In this appeal, the defendant
alleges the evidence is insufficient to sustain his conviction. We
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/coonrodjw.wpd
STATE OF TENNESSEE v. TIMOTHY D. GROVE
Court:TCCA
Attorneys:
Dwight E. Scott, Nashville, Tennessee, for the appellant, Timothy D.
Grove.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Derrick L. Scretchen and Michelle H. Thompson, Assistant
District Attorneys General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant, Timothy D. Grove, appeals his conviction for
aggravated assault and ten-year Range II sentence in the Department of
Correction. Specifically, the defendant contends evidence presented
against him at trial was insufficient to support his conviction, and
his sentence was excessive. After a thorough review of the record, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/grovetd.wpd

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